Your failure to investigate can be evidence of discriminatory intent

Employers that fail to investigate discrimination complaints may try to rationalize that decision. Maybe they think the complaint just couldn’t be true. Maybe they found out too late to really do anything about the complaint.

Deciding not to investigate can backfire badly. Not only could your organization miss an opportunity to right a wrong, but the decision not to investigate may itself be evidence of bias.

Recent case: Damien, who is black, applied to become a public safety dispatch trainee in Long Beach, learning how to handle calls for emergency assistance.

A white manager ran the 911 center. A black woman was the assistant supervisor and lead trainer.

The manager called Damien and told him he was hired. But when he got off the phone, he turned to the lead trainer and declared, “Damien is not going to make it.” She later testified that she believed the manager had guessed Damien’s race from the way he spoke on the phone.

Damien began training, which was scheduled to last about a year. Trainees were on probation during their first year. Several other black trainees were hired around the same time as Damien, along with a white trainee.

The center manager promoted the white trainee ahead of schedule. Around the same time, all the other black trainees quit.

During the remainder of Damien’s training, the supervisor directed the trainers to change the way they scored trainees and ordered them to only note negative feedback, and not offer anything positive.

During Damien’s training, the lead trainer complained to HR about what she perceived as racism in the training program. She pointed to the new assessment guidelines. She also noted what she perceived as racist comments, including the manager’s declaration that Damien would not make it after hearing his voice. She quit soon after.

HR never investigated. Damien did not pass out of his probationary period.

He sued, arguing he had been discriminated against because of his race.

A jury agreed, awarding him $693,000 in damages. The court reversed the jury’s verdict, but Damien appealed and the Court of Appeal of California reinstated the jury verdict. It reasoned that there was enough evidence for the jury to conclude that the white manager was biased against Damien and set him up to fail.

Plus, the court said that the employer’s failure to investigate Damien’s supervisor race discrimination complaint was evidence that Damien wasn’t fired for poor performance but because of bias. By not investigating, Long Beach essentially was bound by the manager’s biases. (Massey v. Long Beach, Court of Appeal of California, 2018)

Final note: Employers are liable for the discrimination perpetuated by a biased manager even if he or she didn’t make the final termination or disciplinary decision. In this case, the manager may have manipulated the training assessment methods to get rid of Damien by setting him up to not survive probation. When Long Beach rubber-stamped that assessment, it became liable for the bias.